Official can’t demand apology before letting speaker comment

At least at public meetings, the First Amendment means never having to say you’re sorry.

In 2004, Richard Hyde, then the mayor of Waukegan, Ill., refused to allow a citizen to speak during an open forum at a city council meeting until the citizen first apologized to a city employee. That refusal, the 7th U.S. Circuit Court of Appeals ruled on Dec. 22, violated the citizen’s First Amendment rights.

The case, Surita v. Hyde, arose out of a towing ordinance that Waukegan passed in 2002 to allow police to impound vehicles and impose $500 fines on persons driving without a license or proof of insurance. The ordinance generated years of controversy, as protesters claimed the effects of the ordinance fell more harshly on minorities.

During a rally against the ordinance in January 2004, Jose Surita criticized the city’s community liaison officer, Susana Figueroa, for not doing enough to help “her people.” After the rally, Figueroa reported to Hyde that Surita had been very angry, “got in her face” and caused her to fear for her safety.

At a city council meeting two days later, Surita attempted to address the council during “audience time,” when members of the public can speak on any topic for up to three minutes. Hyde refused to allow Surita to talk, calling him “lower than a rat” for his behavior toward Figueroa and requiring that he apologize to her before he could speak.

“[T]his Hispanic lady was confronted with a Hispanic man,” Hyde said. “And how any man could talk to a woman like that, I don’t know. If he was talking to another man like that he’d be decked, right there. … No, I am not going to listen to you until you get up … and go to Suzanne Figueroa and you apologize to her.”

Surita filed suit against Hyde in federal court. Also in the suit, Margaret Carrasco and Chris Blanks brought claims against Waukegan Police Chief William Biang, Carrasco alleging that Biang violated her First Amendment rights by applying an assembly ordinance against her in retaliation for her speech against the towing ordinance, and Blanks alleging that Biang violated his First Amendment rights by enforcing the assembly ordinance against him.

Hyde and Biang asked the trial court to grant them summary judgment on the grounds that they, as public employees, enjoyed qualified immunity against the lawsuit. Qualified immunity protects a government official from liability for damages if the official reasonably believes his or her actions complied with the law.

The trial court denied the requests for qualified immunity. It held that if the plaintiffs’ allegations were believed, then factual issues existed as to whether the Waukegan officials were entitled to immunity.

On appeal, the three-judge 7th Circuit panel unanimously affirmed the denial of Hyde’s motion for summary judgment, but also unanimously ruled that Blank’s claim against Biang could not proceed because Biang was not personally involved in applying the assembly ordinance against Blank. The court ruled 2-1 that Biang was not entitled to summary judgment against Carrasco’s retaliation claim because factual issues existed as to whether Biang had violated Carrasco’s rights.

In affirming the trial court’s ruling against Hyde, the appellate court agreed that the city council, by allowing “audience time,” had created a designated public forum and accordingly could not regulate speech on the basis of the speech’s content.

Hyde’s refusal to allow Surita to speak, the court held, was content-based and thus unconstitutional. Because no reasonable argument could be made that Surita was disruptive at the meeting, Hyde knew or should have known that he was violating Surita’s First Amendment rights, the panel said.

In allowing Carrasco’s claim to proceed, the appellate court noted that Waukegan had never before enforced the assembly ordinance, which required protestors on public property to obtain a permit 20 days in advance and to pay a permit fee. Moreover, the court held, the city could not constitutionally base the fee on the subject of the protest, as “deciding whether a person is speaking in protest or support of a law always involves consideration of viewpoint,” a consideration that leads to “egregious” viewpoint discrimination.

The First Amendment Center is an educational organization and cannot provide legal advice.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.

Gene Policinski, chief operating officer of the Newseum Institute, also is senior vice president of the First Amendment Center, a center of the institute. He is a veteran journalist whose career has included work in newspapers, radio, television and online.

John Seigenthaler founded the Newseum Institute’s First Amendment Center in 1991 with the mission of creating national discussion, dialogue and debate about First Amendment rights and values.

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Help tomorrow’s citizens find their voice: Teach the First Amendment

The most basic liberties guaranteed to Americans – embodied in the 45 words of the First Amendment to the U.S. Constitution – assure Americans a government that is responsible to its citizens and responsive to their wishes.

These 45 words are as alive and important today as they were more than 200 years ago. These liberties are neither liberal nor conservative, Democratic nor Republican – they are the basis for our representative democratic form of government.

We know from studies beginning in 1997 by the nonpartisan First Amendment Center, and from studies commissioned by the Knight Foundation and others, that few adult Americans or high school students can name the individual five freedoms that make up the First Amendment.

The lesson plans – drawn from materials prepared by the Newseum and the First Amendment Center – will draw young people into an exploration of how their freedoms began and how they operate in today’s world. Students will discuss just how far individual rights extend, examining rights in the school environment and public places. The lessons may be used in history and government, civics, language arts and journalism, art and debate classes. They may be used in sections or in their entirety. Many of these lesson plans indicate an overall goal, offer suggestions on how to teach the lesson and list additional resources and enrichment activities.

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This site no longer is being updated … And the competition itself is moving to Washington, D.C., where the Newseum Institute’s First Amendment Center is co-sponsoring the “Seigenthaler-Sutherland Cup National First Amendment Moot Court Competition,” March 18-19, in partnership with the Columbus School of Law, of the Catholic University of America.

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The State of the First Amendment surveys, commissioned since 1997 by the First Amendment Center and Newseum, are a regular check on how Americans view their first freedoms of speech, press, assembly, religion and petition.

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